The rule at issue revises the policy of the U.S. Fish and Wildlife Service for evaluating petitions to list species as threatened or endangered under the Endangered Species Act. Parker criticized the final version of the rule for failing to codify important provisions governing the listing petition process that the Service had included in the proposed rule that it initially issued.

The Endangered Species Act requires petitioners to provide “substantial information” that a species listing may be warranted. If the federal agency receiving that information agrees, then a 90-day finding can be issued that then triggers an in-depth 12-month review of available information by the agency.

The proposed rule would have required petitioners to confer with each state within a species’ range before submitting a petition to ensure that the petition presented the best available information, but the final rule abandoned that approach.

He explained that the U.S. Fish and Wildlife Service missed an opportunity to shift the fact-finding burden back to petitioners where the ESA intended that burden to be. The proposed rule would have held petitioners to the ESA’s “substantial information” obligation by requiring more data from them—a more sensible approach than a petition containing what might be one-sided information selected to manipulate a federal agency.

Instead, the final rule keeps the status quo in terms of the burden to conduct fact-finding. That is problematic because the resources and time of the federal agencies are strained to cope with the many petitions they receive, Parker said. “In my view, that is exactly what the initial proposed rule was targeted to address. It no longer does, however,” he said.

On the other hand, Parker welcomed the new requirement that each petition address only one species. He supported that as an important change that will help prevent the blurring of supporting data between different species – as has occurred with multi-species petitions in the past.

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